HUMAN RIGHTS TRIBUNAL OF ONTARIO
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B E T W E E N:
Susan Docherty-Skippen
Applicant
-and-
McMaster University
Respondent
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CAW Canada and it’s Local 555
Intervenor
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INTERIM DECISION
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Adjudicator: Jennifer Scott
Indexed as: Docherty-Skippen v. McMaster University
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WRITTEN SUBMISSIONS
Susan Docherty-Skippen, Applicant
On her own behalf
McMaster University, Respondent
Christopher Burkett, Counsel
Office of Human Rights & Equity Services, McMaster University
Andrew Pinto, Counsel
Canadian Auto Workers, Local 555
Matthew Root, Representative
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability. The applicant alleges she was discriminated against when she returned to work in June 2010, following a medical leave of absence in May 2010.
2The applicant’s union, Canadian Auto Workers, Local 555 (the "union"), attended a meeting regarding the applicant’s return to work on June 21, 2010.
3Hearing dates have been set in this matter for July 5 and 6, 2012.
4The purpose of this Interim Decision is to address outstanding Requests for Orders During Proceedings filed by the applicant and the union.
The Union’s Request to Intervene
5On July 11, 2011, the union filed a Request to Intervene. The Request was held in abeyance pending the results of the mediation. The Application did not settle at mediation.
6The union seeks to intervene in accordance with Rule 11 of the Tribunal’s Rules of Procedure. As the Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:
A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.
7In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by a union, the union’s Request to Intervene is granted. The scope of the union’s participation will be determined at the hearing.
Human Rights and Equity Services
8The applicant has sought disclosure of the file notes in the possession of McMaster’s Office of Human Rights and Equity Services ("HRES") and an order compelling the attendance of Denise Maraj and Jewel Amoah, two HRES staff members, at the hearing. HRES has filed materials objecting to the production of its notes and the compellability of its staff. HRES argues the evidence of its staff and their file notes are not relevant and if relevant, are protected by section 4.9 of the Statutory Powers and Procedure Act, R.S.O. 1990, c. S.22 (the "SPPA") and common law privilege.
9In the Application, the applicant states:
In July, 2010 I contacted Human Rights Officers Denise Maraj and Jewel Amoah from McMaster University’s Office of Human Rights and Equity Services. From July, 2010 until May, 2011 I have been in contact with Denise and Jewel in attempts to better understand the events surrounding the discrimination that occurred to me, in order to come to some sort of resolution.
10In her Reply, the applicant states:
From July, 2010 until June, 2011, the Applicant discussed with the University’s HRES Human Rights Officers Denise Maraj and Jewel Amoah, on several occasion, her human rights concerns. During these discussions several options were considered in an effort to resolve the Applicant’s concerns, of which, was the Applicant’s right to pursue an application with the Ontario Human Rights Tribunal.
11In the Response, the respondent refers to HRES and states the applicant did not utilize the informal resolution mechanisms at HRES or the formal hearing process in pursuit of the allegations that form the basis of her Application.
12At this stage in the process, it does not appear to me that the applicant’s contact with HRES "to better understand the events surrounding the discrimination" and to seek resolution is relevant to the issue before me, namely, whether she was discriminated following her return to work in June 2010. In the same vein, it is not relevant whether she availed herself of the informal resolution mechanisms at HRES or the formal hearing process.
13In light of this finding, I decline to order production of the HRES case notes and compel the attendance of Ms. Maraj and Ms. Amoah at this time. If, during the hearing, it becomes apparent that this information is relevant, I will consider the arguments advanced by HRES that their records and staff are protected by the provisions of the SPPA and common law privilege.
Dr. Rosenfeld and Ms. Gibbons
14The applicant has summonsed Dr. Rosenfeld and Ms. Gibbons to testify at the hearing.
15Respondent’s counsel has advised the applicant that consent is necessary for the release of confidential medical information from these witnesses. The applicant is directed to provide her consent for the release of medical information from Dr. Rosenfeld and Ms. Gibbons for the period April to June 2010. This consent should be provided by June 29, 2012.
16Dr. Rosenfeld has advised that he is not available to testify during the hearing dates that have been set. As it is unlikely the hearing will be completed on these dates, the Tribunal will hear Dr. Rosenfeld’s evidence when the hearing reconvenes, likely in the fall of 2012. Further hearing dates will be set with the parties during the July dates and it will be helpful to have Dr. Rosenfeld’s availability at that time.
Respondent’s Documents
17The respondent has provided a list of documents that it intends to rely upon at the hearing, but has failed to provide copies of the documents. In accordance with Rule 16.2 of the Tribunal’s Rules of Procedure, the respondent is directed to file two copies of the documents that it intends to rely upon at the hearing. These documents should be filed by June 29, 2012. The documents should also be provided to the applicant, if the respondent has not already done so.
Mediation/Adjudication
18Finally, the Tribunal would like to advise both parties of its mediation/adjudication process set out in Rule 15A of the Tribunal’s Rules of Procedure. Should both parties agree, the Tribunal is prepared to offer this process at the commencement of the hearing on July 5, 2012. It is not necessary for the parties to provide their position on this in advance of the hearing.
ORDER
19The Tribunal orders the following:
- The union is granted intervenor status and the style of cause is amended to reflect the same.
- The applicant will provide her consent to the release of medical information for the period April to June 2010 to respondent’s counsel by June 29, 2012.
- The respondent will file two copies of its hearing documents with the Tribunal by June 29, 2012.
Dated at Toronto, this 26th day of June, 2012.
"signed by"
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Jennifer Scott
Vice-chair